NMCCA’s cautionary text on indecent language prosecutions.

NMCAA’s decision in United States v. Johnson, NMCCA 200900141 (N.M. Ct. Crim. App. 25 August 2009), nicely sets out the courts view of when and how bad language is subject to prosecution as indecent. A totality of the circumstances factual and contextual test must be used it seems.

The precise parameters of what constitutes indecent language have been the subject of considerable debate over the years.

The court examined the impact of United States v. Brinson , 49 M.J. 360 (C.A.A.F. 1998) and United States v. Negron, 60 M.J. 136 (C.A.A.F. 2004). In Negron the court stated that prospectively:

[T]he offense of indecent language could also encompass language “grossly offensive to modesty, decency, or propriety, or [that] shocks the moral sense, because of its vulgar, filthy, or disgusting nature.”

The Negron court then went on to conclude:

its analysis in Negron by cautioning Government prosecutors against reading its decision too broadly:

To render language punishable for the offenses of indecent language and depositing obscene matter in the mail, the President has required that the language and conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. In part, it is this element of these offenses that filters out from punishment language that is colloquial vocabulary and may be routinely used by service members. As these offenses touch on First Amendment free speech issues, the Government must always exercise care in both charging and proving these offenses to establish that the factual predicate for these offenses is within the ambit of the narrowly limited classes of [punishable] speech.

With respect to the profanity itself, we are quite certain that the military environment is no more pristine now than it was at the time Chief Judge Cox wrote his concurrence in Brinson over a decade ago, noting the prevalence of certain four-letter words. While that might be a sad commentary on the state of our society (or at least the current state of the English language), we must “filter[] out from punishment language that is colloquial vocabulary and may be routinely used by service members.” Negron, 60 M.J. at 144.

The cases seem to reach a reasonable result. While bad language isn’t to be condoned, it’s a fact of life, and over-charging because of an “egg-shell” victim seems to be discouraged.